Wakilii

Nyeko Smith & Anor v Attoney General (Civil Appeal 1 of 2016)

Supreme Court · [2018] UGSC 13 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal's decision allowing the respondents' appeal on a preliminary objection that the suit was time-barred.
Decision
Appeal dismissed; the Court of Appeal's decision that the suit was time-barred under section 3(2) of the Civil Procedure Limitation (Miscellaneous Provisions) Act was upheld.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the appellants' appeal against the Court of Appeal's finding that their suit for unlawful termination and terminal benefits against the Government was time-barred under section 3(2) of the Civil Procedure Limitation (Miscellaneous Provisions) Act. Ground one, founded on a non-existent section 3(3), was misconceived. The Court held that dialogue and negotiations with a defendant do not constitute a disability extending limitation under section 5, and that a general, unparticularised plea of rebel activities, without averments of abduction or detention, cannot amount to a disability requiring the matter to proceed to trial. The appeal was dismissed with no order as to costs, the appellants having sued as paupers. Kisaakye, JSC, dissented.

Facts

The appellants, former workers of National Sugar Works (Kinyara) Ltd, a government-owned company, were employed between 1970 and 1985. In 1985 war between the National Resistance Army and the then Government disrupted the factory, and the appellants were advised to go on leave. Around 1990 Government replaced the company with Kinyara Sugar Ltd, which recruited workers afresh on new terms; the appellants were not re-engaged. Apart from three months' salary arrears paid in 1988, their claimed terminal benefits remained unpaid despite correspondence with various Government agencies. In July 2009 the appellants brought a representative suit in the High Court at Masindi against the Attorney General and others for unlawful termination of employment and terminal benefits. The defendants raised a preliminary objection that the suit was time-barred. The trial judge overruled it, finding the appellants were under disability owing to war and that part-payment acknowledged the debt. The Court of Appeal reversed, holding the suit time-barred, which prompted this appeal.

Issues

  1. Whether ground one, founded on section 3(3) of the Civil Procedure Limitation (Miscellaneous Provisions) Act, was sustainable where that provision does not exist.
  2. Whether the appellants' action against the Government for unlawful termination and terminal benefits was time-barred under section 3(2) of the Civil Procedure Limitation (Miscellaneous Provisions) Act.
  3. Whether dialogue and negotiations between the appellants and the Government constituted a disability extending the limitation period under section 5 of the Act.
  4. Whether the appellants' general plea of rebel activities constituted a disability under section 5 requiring the limitation question to be determined at trial rather than on a preliminary objection.

Orders

  • Appeal dismissed.
  • No order as to costs, the appellants having sued as paupers.

Key headnotes

Limitation — Disability — Dialogue and Negotiations with the Defendant
A plaintiff's engagement in dialogue or negotiations with a defendant during the limitation period does not constitute a disability under section 5 of the Civil Procedure Limitation (Miscellaneous Provisions) Act and does not extend the time within which the action must be brought.
Limitation — Disability — Rebel Activities and Insurgency
A general, unparticularised plea that rebel activities prevented a plaintiff from filing suit, unsupported by averments such as abduction or detention, does not amount to a disability under section 5 of the Civil Procedure Limitation (Miscellaneous Provisions) Act and does not require the limitation question to be sent to trial.
Limitation — Actions Founded on Contract against the Government
An action founded on contract against the Government must be brought within three years from the date on which the cause of action arose, as provided by section 3(2) of the Civil Procedure Limitation (Miscellaneous Provisions) Act.
Pleading — Ground Founded on a Non-existent Statutory Provision
A ground of appeal founded on a statutory provision that does not exist, such as section 3(3) of the Civil Procedure Limitation (Miscellaneous Provisions) Act, is misconceived and cannot succeed.
Preliminary Objection — Determination on Pleadings without Evidence
A preliminary objection must be decided on the pleadings and not on evidence; where a plaint discloses no sufficient material from which a question of fact such as disability can be resolved, the court must determine the objection on the pleadings as they stand rather than receive submissions of fact from the bar.

Legislation cited (15)

  • Civil Procedure Limitation (Miscellaneous Provisions) Act s.3(2)
  • Civil Procedure Limitation (Miscellaneous Provisions) Act s.3(3)
  • Civil Procedure Limitation (Miscellaneous Provisions) Act s.5
  • Civil Procedure Limitation (Miscellaneous Provisions) Act s.4
  • Constitution of Uganda Article 175(b)
  • Constitution of Uganda Article 26
  • Employment Act (Cap 219) s.6(3)
  • Employment Act (Cap 219) s.9
  • Employment Act (Cap 219) s.18
  • Evidence Act s.101
  • Evidence Act s.102
  • Public Enterprises Reform and Divestiture Act (Cap 98)
  • Pensions Act
  • Public Service Act
  • Civil Procedure Rules Order 7 Rule 11(a)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
  • Peter Mangeni v Departed Asians Property Custodian Board (Civil Appeal No. 13 of 1995)
  • Charles Lubowa and Others v Makerere University (Civil Appeal No. 2 of 2011)
  • Wycliff Kiggundu v Attorney General (Civil Appeal No. 27 of 1992)
  • Allen Nsibirwa v National Water and Sewerage Corporation (High Court Civil Suit No. 88 of 1992)
  • Birkett v James [1977] 2 All ER 801
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.